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CONFLICT BETWEEN BANKRUPTCY GENERAL CONFISCATION AND CRIMINAL CONFISCATION

The conflict between the authorities to conduct seizure by curators and investigators has become the topic of conversation among practitioners and academics lately. The problem is; who is more authorized to conduct seizure and control items or assets in the case that the items or assets are a bankruptcy estate as well as evidence of crime investigation.

Opinions about these are split into two, the former argues that seizure for the purpose
of preliminary investigation or criminal investigation should take precedence over seizure of the interests of bankruptcy and the clearance of debtor’s property. The reason is that the interests of public law must take precedence over private law interests. In this case, the investigator has the authority of seizure of an item or asset even if it is known that the item or asset are in a state of a general seizure by the control of the curator.

The second opinion states that general seizure is higher than the criminal seizure. This is based on several matters: (i) general seizure is based on a court decision that has the effect to all judicial decisions (ii) that the product of a court decision can only be reversed by a court decision as well, not by court order. Meanwhile, the cornerstone of the authority of a criminal seizure is the court order.

“Basically, general seizure is a foreclosure known in civil law, in particular in bankruptcy law that regulate the correlation between creditors and debtors. But during its progress, bankruptcy in Indonesia is not limited to private interests only.”

Law Number 37 Year 2004 on Bankruptcy or Bankruptcy Law regulates aspects that intersect with the public interest, one of which is tax debt, which places the country as a preferred creditor. Another aspect of public interest in the bankruptcy process is the criminal seizure on the part of the asset bankruptcy of the debtor. This is where the wedge between the private and public domain intersects.

The purpose of the implementation of public seizure is to protect the interests of creditors. First, to avoid any act of debtors that can loss the bankrupt asset. Secondly, to stop the unilateral execution by creditors against the debtor’s assets. Therefore, the general seizure of the debtor’s possessions was established since the bankruptcy verdict was declared, and from then on, the debtor by law lost his right to control and take care of his assets.

Meanwhile, the criminal seizure is a series of investigative actions to take over and or to keep, under his control, of movable or immovable, tangible
or intangible objects, for the interest of proof in investigation, prosecution and judicial proceedings. 1 the seized assets are taken by the investigator from the owners’ authority to be used as evidence for the purposes of examination, prosecution and judiciary. The seizure is intended to keep the object safe, unable

to be eliminated or destroyed by a suspect or defendant.

Article 31 Paragraph (2) concerning Bankruptcy Law essentially states that all seizure is terminated when the bankruptcy verdict has been pronounced, if necessary the supervisory judge shall order the write-off. Since

the bankruptcy verdict was pronounced, all the seizure that existed on an object expired and were replaced
by the general seizure of bankruptcy. This is intended to protect the bankrupt debtors’ assets from possible fraud by creditors or debtors. 1

Meanwhile, the Article 39 Paragraph (2) of Law of Criminal Procedure states that objects in bankruptcy cases may be seized by investigators for the needs of investigation, prosecution and trial of criminal cases. As matter of the need for investigation, prosecution and judiciary, the assets of bankrupt debtors that have been seized by the public may be seized again by the investigator to ensure their safety. The asset will be used as evidence in the investigation, prosecution and judiciary so that its security must be guaranteed. In implementation, the two articles are risky to be confronted to for an authority competition between the curator and the investigator in the execution of public seizure and criminal seizure. Any opinion of who should take precedence comes with a clear legal basis. At the level of practice, required a discernment in making decisions and taking actions of each party, both curator and investigator. They may choose to challenge these authorities through legal channels or work together to smooth the execution of their respective duties.

If the interest of the curator is to auction off the
assets of the debtor and share the proceeds with the creditors, it is possible to “lend” the assets to the investigator. As known, the interest of the investigator to seize the items or assets is to make it become evidence and complete the process of preliminary investigation or full investigation, not to have it. Thus, the criminal case can be immediately resolved and ordered in the hope that the evidence will be returned to the curator.

At the normative level, a firmness setting is required-or perhaps more on technical issues-when the debtor’s assets are insolvent and at the same time as evidence in the process of preliminary investigation, full investigation, or perhaps in the prosecution and trial of criminal cases.

-MSB-